Conservation Council for Hawaii v. National Marine Fisheries Service
2015 WL 1499589, 97 F. Supp. 3d 1210 (2015)
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Rule of Law:
An agency's authorization of activities that harm marine mammals is arbitrary and capricious if it fails to: 1) analyze the environmental impact of the full number of 'takes' it authorizes, rather than a lower anticipated number; 2) assess the impact on every affected species and stock; 3) use the best available science, including metrics like Potential Biological Removal levels; and 4) give a hard look at a true 'no action' alternative and other reasonable mitigation measures.
Facts:
- The U.S. Navy proposed to conduct large-scale training and testing activities, including sonar use and underwater detonations, in the Hawaii-Southern California Training and Testing (HSTT) Study Area.
- The HSTT Study Area is occupied by thirty-nine marine mammal species, eight of which are endangered and one of which is threatened.
- The Navy's proposed activities were expected to result in the 'take'—meaning the harassment, injury, or death—of a substantial number of these marine mammals.
- The Navy applied to the National Marine Fisheries Service (NMFS) for a five-year authorization to take marine mammals incidental to its activities.
- The Navy, with NMFS as a cooperating agency, prepared a Final Environmental Impact Statement (FEIS) analyzing the environmental effects of the proposed activities.
- In December 2013, NMFS issued a Final Rule and Letters of Authorization under the Marine Mammal Protection Act (MMPA), finding the activities would have a 'negligible impact' and permitting the Navy to take large numbers of marine mammals, including mortalities.
- Also in December 2013, NMFS issued a Biological Opinion under the Endangered Species Act (ESA), concluding the activities would not 'jeopardize' the continued existence of endangered species like whales and turtles, and it authorized an 'unspecified number' of turtle takes by vessel strike.
Procedural Posture:
- The Conservation Council for Hawaii and other environmental groups filed suit against the National Marine Fisheries Service (NMFS) in the U.S. District Court for the District of Hawaii.
- The Natural Resources Defense Council (NRDC) and other groups filed a separate suit against NMFS and the U.S. Navy in the same court.
- The two cases were consolidated by stipulation of the parties.
- Plaintiffs in both cases filed motions for summary judgment, arguing the agency's actions were arbitrary and capricious and violated federal law.
- Defendants (NMFS and the Navy) also filed motions for summary judgment, asking the court to uphold their actions.
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Issue:
Does the National Marine Fisheries Service's authorization of the U.S. Navy's training and testing activities constitute an arbitrary and capricious agency action in violation of the Marine Mammal Protection Act, the Endangered Species Act, and the National Environmental Policy Act?
Opinions:
Majority - Chief Judge Susan Oki Mollway
Yes, the National Marine Fisheries Service's authorization was arbitrary and capricious. The agency's actions violated the MMPA, ESA, and NEPA by failing to provide a rational basis for its conclusions. Under the Marine Mammal Protection Act (MMPA), the 'negligible impact' finding was arbitrary and capricious for four main reasons. First, NMFS improperly based its analysis on the lower number of 'anticipated' takes instead of the much higher number of 'authorized' takes. Second, NMFS failed to analyze the population-level effects on numerous affected species and stocks, providing only a general discussion or conclusory statements for many. Third, NMFS failed to use the 'best scientific evidence available' by ignoring Potential Biological Removal (PBR) levels, which showed that authorized mortalities for 15 stocks far exceeded sustainable limits. Fourth, NMFS failed to prescribe means for the 'least practicable adverse impact' by summarily rejecting reasonable mitigation measures, like time/area restrictions, without adequate analysis. Under the Endangered Species Act (ESA), the Biological Opinion was deficient. The 'no jeopardy' finding for endangered whales was arbitrary and capricious because it was conclusory and failed to analyze the species-level consequences of authorized deaths, especially given the agency's own admission that the death of a female would reduce the population's reproductive capacity. Furthermore, the Incidental Take Statement for sea turtles was invalid because it authorized an 'unspecified number' of takes by vessel strike without a numerical cap or a functional surrogate trigger to prompt re-consultation, which is required by law. Under the National Environmental Policy Act (NEPA), the Final Environmental Impact Statement (FEIS) was deficient. The FEIS failed to consider a true 'no action' alternative, which would be the denial of the MMPA authorization; instead, it improperly defined 'no action' as the continuation of baseline Navy activities. The FEIS also failed to take a 'hard look' at reasonable alternatives that would reduce harm, such as specific time/area closures suggested in public comments, by dismissing them with sweeping and unsupported statements about impracticality.
Analysis:
This decision reinforces that national security and military readiness interests do not excuse federal agencies from their mandatory duties under environmental statutes. It significantly clarifies that an agency's 'negligible impact' finding under the MMPA must be based on the maximum harm authorized by a permit, not a lower, speculative 'anticipated' harm. The ruling also strengthens the 'best available science' requirement by holding that agencies cannot ignore critical, established metrics like Potential Biological Removal (PBR) levels when authorizing lethal takes. For future NEPA reviews of similar federal actions, this case underscores the necessity of analyzing a genuine 'no action' alternative (i.e., permit denial) and giving substantive, non-conclusory consideration to reasonable mitigation strategies.
